DOCSLIB.ORG

Customary Pledge of Land in Nigeria

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Customary Pledge of Land in Nigeria International Journal of Innovative Legal & Political Studies 7(2):25-30, April-June, 2019 © SEAHI PUBLICATIONS, 2019 www.seahipaj.org ISSN: 2467-8503 Customary Pledge Of Land In Nigeria Okafor, Samuel Obumneme Esq LLB, BL, LLM, Notary Public Senior Lecturer, Department of Business Law, Faculty of Law, Enugu State University of Science and Technology, Agbani-Enugu State, Nigeria Aduaka Charles Emenogha Esq LLM, BL, Ph.D Senior Lecturer, Department of International Law & Jurisprudence, Faculty of Law, Enugu State University of Science and Technology, Agbani-Enugu State, Nigeria ABSTRACT Pledge of land under the native law and custom could easily be mistaken for customary tenancy as the two transactions are very similar but yet highly divergent in many ways. Economics and other domestic needs may lead to a landowner giving out the possession of his land upon a pledge and while he gives out possession, retains title very much in the same way as the overlord under a customary tenancy arrangement. The rules and characteristic of customary pledge were based mainly on the degree of trust which people had in one another in the olden days under the customary setting. Today however, most pledges of land have due to long possession resorted to adverse claims over the pledged land against the pledgors which has resulted to needless and avoidable litigations over conquest for title. The peculiar nature of the customary pledge and the ease with which it could be exploited by the unscrupulous pledgee to attempt to expropriate the pledgor of his interest in the land has brought up the need to examine the nature of customary pledge and appreciate its reassuring peculiar characteristics which have refused to yield to the schemes of the greedy and to give them a leeway to foreclose redemption. Keywords: Customary Pledge, Customary Law, Tenancy, Mortgage and Redemption INTRODUCTION A pledge is a form of security transaction known to customary law. It is entered into where the owner- occupier of land known as the pledgeor in order to secure an advance of money or money’s worth, gives possession and use of the land to the creditor known as the pledgee until the debt is fully discharged. On the meaning of pledge under customary law, the Court of Appeal in Ahaneku v Iheaturu1 explained that it means promise, vow, agreement, undertaking, security, pawn or guarantee. Explaining the nature of customary pledge in Alloysius Eze Egbe v Ochichi Duru2, the Supreme Court stated thus; Ordinarily, a case of a pledge of land and or its redemption certris peribus (if all things be equal) does not involve an issue of title to the pledged land. By the very nature of such a transaction, the pledge or retains title in himself and the pledge has mere possession. Furthermore, by the very nature of customary pledge, it is perpetually redeemable. The temporary occupation license of the pledgee terminates on redemption. The pledgor retains thereafter both title and possession yielded to him upon redemption. Where however, a pledgee denies the pledge transaction, asserts and claims both title and possession in himself, it is a contest for title. 1 (1995) 2 NWLR pt 380 p 758. 2 (1998) 9 NWLR pt 565 p288. 25 Okafor &Aduaka..…. Int. J. Innovative Legal & Political Studies 7(2):25-30, 2019 In Polo v Ojor3, the Court of Appeal described a customary pledge as an indigenous mortgage by which the owner occupier of land in order to secure an advantage of money gives possession and use of his land to the pledgee creditor until redemption, that is when possession is re-exchanged for a full discharge of the debt. The possession of a pledge land remains with the pledgee until redemption by the pledgor. From the foregoing description, some essential or characteristic features of a pledge under native law and custom are discernible; 1. That the pledge provides the pledgee creditor with security for the performance of the pledgor’s obligation of repaying the debt. 2. That the security takes the form of giving the pledgee possession of the pledgor’s land or property. 3. It is only possession of the pledged land that is delivered to the pledgee by the pledgor but not together with the title to the land pledged as the pledgor retains title in himself, while the pledgee has mere possession. 4. The customary pledge is perpetually redeemable by the pledgor or his successors-in-title. 5. The possession or temporary occupational license of the pledgee terminates upon the land being redeemed by the pledgor who then resumes possession and retained both possession and title. 6. The pledgee can never deny the title the pledgor or the pledgee transaction but it he does so, it results to a contest for title between the pledgor and the pledgee over the pledged land. 7. A pledge naturally precedes its redemption and thus, if there is no pledge, there can be no redemption and by necessary extrapolation, a redemption presupposes that there was a pledge. Ebevuhe & Ors v Ukpakara & Ors4. 8. There is normally no specific time for the redemption of the pledge. No matter how long a pledge lasts before redemption it can never mature into ownership of the land in favour of the pledgee. 9. The pledge transaction does not and cannot confer on the pledgee the power to sell the pledged land to discharge the pledgor’s obligation to him and if the pledgee does so, such disposition will be void. Customary Pledge and Mortgage under the English (Received) Law. The customary pledge is sometimes confused with the English mortgage. Elias in Nigerian Land Law 4th Edition pp 153 – 254 described a pledge as a kind of indigenous mortgage. The problem of the confusion is usually further compounded by the practice of reducing customary transactions into writing and failing to use the language that is precise enough to indicate the nature of the transaction. Thus, the controversy over the transaction in the case of Nwabuoku v Ottih5 stemmed from an agreement of loan between two parties whereby the plaintiff gave the defendant possession of his house with rights to collect rents and profits therefrom, but a document was later executed describing the transaction as a mortgage. The confusion naturally arose because the distinction between a customary pledge and the English mortgage transactions is in the nature of the security granted to the creditor under each transaction. If the agreement is intended to give the creditor some proprietary estate or interest in the property then, irrespective of the fact that the creditor takes possession of the property under an express stipulation or by operation of law, the transaction is a mortgage. In the other hand, in a pledge, actual possession of the property is the whole essence of the creditor’s security. It will therefore be proper to describe a pledge as a possessory security while the common law mortgage is a proprietary security. Thus, in Adejei v Dabanka6, the court put the matter thus. 3 (2003) 3 NWLR pt 807 p344. 4 (1996) 7 NWLR pt 460 p254. 5 (1961) All NLR p487. 6 (1930) WACA 63 @ 66-67. 26 Okafor &Aduaka..…. Int. J. Innovative Legal & Political Studies 7(2):25-30, 2019 It is an essential of a native mortgage (pledge) that possession should be given at the time when transaction takes place between the parties. It is out of the possession granted under the agreement that the pledge’s rights spring. Understandably therefore, the usual arrangement under customary pledge transactions is that the pledgee shall enter upon the pledgor’s land and enjoy the rents and profits from the land until the pledged land is redeemed. Perpetual Redeemability of a Pledge The nature of customary law pledge is demonstrated by the maxim once a pledgee always a pledgee which is an age long maxim under customary law. - Melifonwu v Egbuji7 - Taiwo v Dosunmu8 - Adegboyega v Igbinosun9 - Ikeanyi v Adighogu10 - Ebvuhe v Ukpakara11 The maxim signifies two basic principles; namely 1. That a thing which is pledged is never lost. So long as it is possible to identify the original purpose or understanding behind the transaction, the land and the parties or their successors to the pledge there is a right to redeem the land not withstanding that many years have elapsed from the date of the transaction. 2. That notwithstanding any stipulation in the agreement for the postponement of the redemption date, the pledgor would be allowed to redeem his property within the stipulated period by tendering the money due for payment under the pledge transaction. This is so notwithstanding that the pledgee had expanded money on improvement or that he has invested money and labour in growing crops yet to be harvested. Adjei v Dabanka12. It is thus obvious that the right of the pledgor to redeem cannot be defeated by lapse of time and may be exercised by the pledgor’s successors in title. This right to redeem is absolute and cannot be fettered by agreement. In Laragun v Funlayo13 a pledged land which enured for 30 years was held to be redeemable. - Amao v Adigun14 - Okoioko v Esedalue15 - Okpowaga v Ewhedoma16 The rule is also that the pledgee is expected to put the pledged land to ordinary use. Thus, a pledgee who plants economic trees or erects permanent structures in the absence of express agreement does so at his own risk or peril. Thus in Okoioko v Esedalue17 Elias CJN (as he then was) put the matter this; “The very nature of a customary pledge which is perpetually redeemable is that the pledgee has only a temporary occupation license and that he must yield up the pledged land as far as possible in the form he took it originally.
Load more

Recommended publications
  • Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles Valerie Seal Meiners
    Louisiana Law Review Volume 48 | Number 1 September 1987 Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles Valerie Seal Meiners Repository Citation Valerie Seal Meiners, Formal Requirements of Pledge Under Louisiana Civil Code Article 3158 and Related Articles, 48 La. L. Rev. (1987) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol48/iss1/8 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS FORMAL REQUIREMENTS OF PLEDGE UNDER LOUISIANA CIVIL CODE ARTICLE 3158 AND RELATED ARTICLES' According to the scholar Denis, "[t]he pledge springs from natural law and is of the farthest antiquity;" it secured debts "in the primitive relations of men." ' 2 Although the specific beginnings are unknown, fre- quent mention of the pledge in ancient texts evidences its early application3 and points to at least one conclusion: that in its earliest stages of development, formalities of pledge were much simpler, albeit more dra- matic, than those of today. Herodotus, in his Histories, explains that a debtor in ancient Egypt would deliver the mummy of his father to his creditor, who was quite willing to make a loan on this basis. 4 Since the mummy was of great religious value to the debtor, he would certainly pay the debt in order to redeem the pledge. In ancient Athens and Rome, the mechanics of pledge were similarly simple: the debtor and creditor contracted that, upon default of the loan, the debtor would become the slave of the creditor until the debt was repaid.
    [Show full text]
  • Security Interests Under Pledge Agreements
    THE YALE LAW JOURNAL EDITORIAL BOARD ALLEN H. MfERRILL Editor-in-Chief Romwr H. HARRY JAciz M. Giusn4,- RUSSELL G. OLSEN MARSHALL HoatrLoWEfl Comment Editors Note Editors FRANRLN M. SCHULTZ RicrrarD A. SOLO.I0No Article and Book Review Editor Case Editor LEwIs C. BOSE TYLER HULL Txxomis C. MAsoz. ERIc H. HAGER EDWIN P. KAUF73A Do:NALD L SmwmLns HENRY KoHN, JR. Editors in Military Service: Louis F. OBERuoR0ER. Editor-in-Chlef DONALD F. KEEFE. Comwent Editor Subscription price $4.50 per year 80 cents pcr ntzmbcr Canadian subscription price $5.00 per ycar: Foreign. $5.25 per year Yale Law JournalCompany, Inc., Box 401A, Yahk Station, Ncw, Itavcn, Con12. SECURITY INTERESTS UNDER PLEDGE AGREEMENTS THE extent to which security law in responding to the ned of business practice nmust reconcile conflicting commercial foirces is illustrated Iby the doctrinal history of the pledge. Both parties to a credit transaction frequently desire, for reasons of expense or business expediency, that the security reb be retained by the borrower. On the other hand, third persons may demand notice of the lender's security interest in order to guide their course uf dealing with the debtor.' The search for a mean proves particularly difficult when the parties avail themselves of the pledge device. Once borrower and lender select its simple formula in order to avoid the requirements sur- rounding such alternative devices as the chattel mortgage and conditional sale, the courts respond to the demand of third persons for notice by com- pelling the lender to take possession of the property as a condition precedent 1.
    [Show full text]
  • Contract of Bailment and Pledge By- Dr Sunita Srivastava, Department of Commerce, University of Lucknow Contract of Bailment and Pledge
    Business law- B.Com II semester Topic- Contract of bailment and pledge By- Dr Sunita Srivastava, Department of commerce, University of Lucknow Contract of Bailment And Pledge Meaning of bailment- The word ‘Bailment’ is derived from French word ‘baillier’ which means to deliver. According to sec 14, a “Bailment’ is the delivery of goods by one person to another for some purpose, with a condition to return the goods when the purpose is over or otherwise disposed off according to the direction of the person delivering them. Parties in bailment contract Bailor- The person delivering the goods is called the bailor. Bailee- The person to whom the goods are delivered is called the bailee. Example: - 1. Mr. X who is going out of station delivers a dog to Mr. Y for proper care. 2. Mr. A hires a horse for riding. 3. Mr. A deliver watch for repair. 4. Mr. A gives a cloth to his tailor for stitching. Essential Elements of a valid bailment Agreement between bailor and bailee Delivery of goods Ownership not change Only movable goods Delivery for some purpose Change in forms Return of goods There must be an agreement between the bailor and bailee. This agreement may be express or implied. However, a bailment may be implied by law as it happens in the case of finder of lost goods. In bailment, it is necessary that the goods should be delivered to the bailee. It is the essence of the contract of bailment. It is further necessary that the possession of the goods should be voluntarily transferred and is in the accordance with the contract.
    [Show full text]
  • The Rights of a Pledgor on Transfers of a Pledge James Lewis Parks
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1922 The Rights of a Pledgor on Transfers of a Pledge James Lewis Parks Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Parks, James Lewis, "The Rights of a Pledgor on Transfers of a Pledge" (1922). Minnesota Law Review. 1549. https://scholarship.law.umn.edu/mlr/1549 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW Vol. 6 FEBRUARY, 1922 No. 3 THE RIGHTS OF A PLEDGOR ON TRANSFERS OF A PLEDGE By JAMES LE:wIS PARKS* N certain communities, personal property of one kind or another is frequently deposited by way of pledge or pawn to secure the performance of an obligation. The question as to the rights of the pledgor and pledgee in the property, both before and after the maturity' of the debt is of importance, and the results flowing from an improper and illegal transfer of the pledge by the pledgee are often complicated. It is, accordingly, proposed in the following pages to consider transactions involving transfers of the property by the pledgee, and to endeavor to formulate the rules which regulate the rights and obligations of the parties in this respect. According to Story's definition, which has been universally accepted, a pledge or pawn
    [Show full text]
  • Law on Contractual Pledge
    F.Y.R. Macedonia Law on Contractual Pledge (adopted on 31 January 2003) Important Disclaimer This does not constitute an official translation and the translator cannot be held responsible for any inaccuracy or omission in the translation. The text should be used for information purposes only and appropriate legal advice should be sought as and when appropriate. Chapter I - General Provisions Article 1 This Law regulates the manner, conditions and procedure for creation, existence, realization and termination of the contractual pledge right over moveable property, securities, claims and other rights (pledge on movables) and immovables (mortgage) (in the further text: pledge, right on pledge). Article 2 The pledge serves as a security for monetary and other types of claims, whose value is measurable in monetary terms, that the creditor has with respect to his/hers debtor from certain obligatory relation. For the claims secured by pledge, in case they are not collected within their maturity, the pledgee, can obtain satisfaction from the value of the subject of the pledge, or under conditions and manner prescribed by this Law obtain right on ownership of the subject of the pledge (lex commissaria). The claims described in paragraph 1 are considered as sufficiently identified in case their carrier, debtor, legal basis and the amount, i.e., the type of the claims, are known. Article 3 The pledge on movables can be established by transfer of the subject into possession (possessory pledge) or without its transfer into possession (non-possessory pledge), while the mortgage can only be established as non-possessory. Article 4 Subject of pledge on movables can be any moveable property, security, certain ownership claim or other right, while subject of mortgage can only be certain immovable property or subject expressed as a immoveable property, with this or other law.
    [Show full text]
  • The Practical Lender
    VEDDERPRICE ® Finance and Transactions Group October 2008 The Practical Lender Cross-Border Lending Introduction IRC § 956-The “Deemed subsidiary’s current and accumulated earnings and Globalization of business has Dividend Rule” profi ts are less than the amount accelerated. In order to remain Under Internal Revenue Code of the U.S. obligation, then all competitive, lenders must be (“IRC”) § 956, the obligation of a of the foreign subsidiary’s prepared to structure U.S. corporate parent to a future earnings and profi ts will transactions with cross-border lender will trigger a “deemed be subject to the deemed lending features—loans to dividend” of the controlled distribution up to the amount of foreign borrowers or loans foreign subsidiary’s current and the U.S. loan obligation (after against the value of foreign accumulated earnings and subtracting prior deemed borrowers’ assets. Cross- profi ts up to the amount of the distributions). border lending requires lenders U.S. loan obligation if any one Borrowers and lenders often to address issues related to of the following three events assume that a U.S. parent taxes, security and available occurs: (a) 66⅔ percent or cannot pledge the stock of a remedies. This article briefl y more of the foreign subsidiary’s foreign subsidiary and that a discusses these issues and outstanding voting stock is foreign subsidiary cannot focuses on the laws of Canada pledged to the U.S. parent’s guarantee or pledge its assets and Mexico relative to security lender (accompanied by certain in support of the loan to the and insolvency. Practical tips restrictions on the disposition of U.S.
    [Show full text]
  • Security Devices - Pledge - Requirement of Dispossession Stanford O
    Louisiana Law Review Volume 26 | Number 1 December 1965 Security Devices - Pledge - Requirement of Dispossession Stanford O. Bardwell Jr. Repository Citation Stanford O. Bardwell Jr., Security Devices - Pledge - Requirement of Dispossession, 26 La. L. Rev. (1965) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol26/iss1/19 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. LOUISIANA LAW REVIEW [Vol. XXVI cause of this, personal privileges and freedoms are receiving more protection from state abuse than they once did. The minority position, as expressed in separate concurring opinions by Justices Harlan and Stewart, was that the state conviction should be reversed because absence of an opportunity to confront and cross-examine the witness, through counsel, was a denial of due process of law guaranteed by the fourteenth amendment, but that the fourteenth amendment should be controlling in- dependently of the sixth. Justice Harlan argued that the Court had not incorporated the first eight amendments in toto was evidence that not all of the provisions of the Bill of Rights are fundamental, 3 2 yet the Court ignored the possibility that all parts of any one provision may not necessarily be fundamental. The traditional and indispensable diversity of the federal system, subject of course to due process of law, was also alluded to by Justice Harlan as a reason not to bind the states rigidly in the area of criminal law enforcement.
    [Show full text]
  • Definition – Essentials – Kinds – Rights and Duties of Bailor and Bailee – Bailee’S Lien – Termination of Bailment
    UNIT II Bailment and pledge - bailment – definition – essentials – kinds – rights and duties of bailor and bailee – bailee’s lien – termination of bailment. Pledge – definition – rights and duties of Pawnor and Pawnee – Pledge by non – owners Bailment and pledge Secs 148 to 181 of the Contract Act of deal with contracts of bailment and pledge. Bailment the world ‘bailment’ is derived from the French world the French world ‘baillier’ which means “to deliver”, it means any kind of handling over’. In legal sense, it involves change of possession of goods from one person to another for some specific purpose. Definition of Bailment: Sec. 184 defines Bailment as the delivery of goods by one person to another for some purpose, upon a contract, that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the ‘bailor’ and the person the person to whom they are delivered is called the ‘bailee’. Example: A delivers a piece of cloth to B, a bailor, to be stitched into a suit. There is a contract or bailment between A and B. Consideration in a contract of bailment: In a contract of bailment, the consideration is generally in the form money payment either by the bailor or the bailee, as for example, when A gives his bicycle to B for repair, or when A gives his car to B on hire. Such consideration in money form. Essential elements of bailment: To constitute a contract of bailment, the following conditions are to be satisfied.
    [Show full text]
  • Category Guaranty Suretyship Pledge
    CATEGORY GUARANTY SURETYSHIP PLEDGE MORTGAGE ANTICHRESIS CHATTEL REAL MORTGAGE ESTATE MORTGAGE LAW CIVIL CODE The second CIVIL CODE CIVIL CODE CIVIL CODE CIVIL CODE Articles 2047-2084 paragraph of Articles 2085- Articles 2085-2092 Articles Articles Article 2047 2123 2140-2141 THE 2083-2092 2085-2092 states the law CHATTEL 2124-2131 2132-2139 applicable to the MORTGAGE LAW SUPREME contract of (Act No. 1508, as COURT A.M. suretyship. It amended) NO. 99-10-05-0 covers Articles AS 1207 to 1222, AMENDED Title I BY (Obligations), RESOLUTION Chapter 3 OF JUNE 30, (Different Kinds 2001 AND of Obligations), AUGUST 7, Section 4 (Joint 2002 and Solidary JUDICIAL Obligations), FORECLOSU Book IV RE OF REAL (Obligations and ESTATE Contracts) of the MORTGAGE CIVIL CODE (Rule 68, ROC) DEFINITION By guaranty a person, If a person binds It is a contract by By a chattel mortgage, A real estate By the contract of called the guarantor, himself solidarily virtue of which personal property is mortgage is a antichresis the binds himself to the with the principal the debtor recorded in the Chattel contract creditor acquires creditor to fulfill the debtor, the delivers to the Mortgage Register as whereby the the right to receive obligation of the provisions of creditor or to a a security for the debtor secures the fruits of an principal debtor in Section 4, third person a performance of an to the creditor immovable of his case the latter should Chapter 3, movable obligation. If the the fulfillment debtor, with the fail to do so. Art. Title 1 of this or a document movable, instead of of a principal obligation to app 2047 (1) Book shall be involving being recorded, is obligation, apply them to the observed.
    [Show full text]
  • Bailment and Pledge
    UNIT BAILMENT AND PLEDGE Structure 10.0 Objectives 10.1 Introduction , 10.2 Mearl~ngof Bailmen1 10.3 Klnds of Bailment 10.4 Duties of Bailor 10.5 Duties of Bailee 10.6 Rights of Bailor 10.7 Rights of' Bnilcc 10.8 Right&ot Bailor and Bailec against Wrongdoer 10 9 F~nderof Goods 10 0 I K~ghtsul ,I T'lnJel of Gooti., 10.9 2 Dutlrs of ;1 Finder of Goods 10.10 Terniinat~onof Bailment 10.11 Meaning of Pawn or Pledge 10.12 Who May Plcdgt. 10.13 Pledge and Bailment 10.14 Pledge and Hypothecation 10.15 Rlghls of Pawnee 1116 Dutieh ol Pawnee 10.17 Rights and Duties of Pawnor 10.17.1 K~ghtsol P;\wnor 10 17.2 Dut~esof Piiwnor 10.18 Pledge by Non-Owners 10.19 Let Us Sum Up 10.20 Key Words 10.21 Answers to Check Your Progress 10.22 Terminal Questions I -------- -- I 10.0 OBJECTIVES After studying this unit, you shoulcl be able to. ,I e define bailment and distinguish it from other types of contra~ts e describe various kinds of bailmenrs 5! explain rigllu and duties c)t bailor and hilllee i <I @ describe the rights ilnd duties 01 finder of goods 1 0 define pledge I explain rights and duties of pawnor and puwncc 1 J distinguish pledge from other types of contracts. 4 l 'I ij -- I 10.1 INTRODUCTION -- .. -- -- -- - -- .----. 11 fl Bailment and Pledge are cxamples of specific contracts. Indian Contract Act 1872 1s ,I not a comprehensive Act, dealing with all types of specific contracts.
    [Show full text]
  • Forum Juridicum: Pledge Or Mortgage of Immovable Property As Proper Security for a Suspensive Appeal Care J
    Louisiana Law Review Volume 32 | Number 3 April 1972 Forum Juridicum: Pledge or Mortgage of Immovable Property as Proper Security for a Suspensive Appeal Care J. Gugliemo Sidney M. Blitzer Jr. Repository Citation Care J. Gugliemo and Sidney M. Blitzer Jr., Forum Juridicum: Pledge or Mortgage of Immovable Property as Proper Security for a Suspensive Appeal, 32 La. L. Rev. (1972) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol32/iss3/3 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Forum Juridicum PLEDGE OR MORTGAGE OF IMMOVABLE PROPERTY AS PROPER SECURITY FOR A SUSPENSIVE APPEAL Carey J. Guglielmo and Sidney M. Blitzer, Jr.* The Louisiana Code of Civil Procedure fixes the security for a suspensive appeal from a money judgment at an amount that exceeds by one-half the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, and exclusive of costs.' The defendant, particularly when an individual, may have difficulty in supplying such security, especially if the amount of the money judgment is substantial. Even if he is a person of moderate income, com- pensated sureties are reluctant to write suspensive appeal bonds, and personal sureties may be impossible to obtain. However, if he is a landowner and his immovable property is of suffi- cient value, he may pledge or mortgage it as his security for the appeal.
    [Show full text]
  • The Pledge As a Legal Instrument for Reinforcement of the Contract
    ISSN 2039-2117 (online) Mediterranean Journal of Social Sciences Vol 6 No 2 S2 ISSN 2039-9340 (print) MCSER Publishing, Rome-Italy March 2015 The Pledge as a Legal Instrument for Reinforcement of the Contract Skender Gojani, PhD Lecturer, Faculty of Law, University of Prizren "Ukshin Hoti", Kosovo [email protected] Doi:10.5901/mjss.2015.v6n2s2p197 Abstract The contract is made with the aim of achieving harmonized interests of contractors. Contractors, such as the seller and the buyer, initially align goals and mutual interests and, as such, they set in the contract, in order to realize in practice. This is the normal course of contracting and contractual implementation. However, in practice, it often happens that, at least one contractor to disobey them adequately its contractual obligation and, to the extent and in what form, to damage the contractor. After that, the judicial proceedings for the realization of contractual requirement of contractor damaged, to the extent of consideration, is complex and lengthy, in that proceeding, the damaged contractor, again, is disadvantage. Consequently, in practice, are applied forms of respective insurance forms of contractual of request of contractual creditor. Such a practice is called "instrument for reinforcement the contract". Instrument for reinforcement of the contract, is regulated with a clausal of contract and presents its accessory element. When the contract is perfected in accordance with contractual terms, contractual enforcement instrument, is not activated and vice versa. In theory and in practice, are recognized and applied multiple instruments, and different to enforce the contracts, among which, worth to be emphasized the Pledge.
    [Show full text]